To read from the beginning, please see blog entry dated June 9, 2009.
To read Part II, please see blog entry dated June 11, 2009.
To read Part III, please see blog entry dated June 21, 2009.
This article may be read in its entirety at George Whitelock, Damages For Death By Negligence At Sea – The Titanic, 49 American Law Review, 75 (1915).
(continued from part III)
(We left off with a quote by Justice Holms and now continue with Whitelock’s response.)
The far-reaching significance to the Oceanic Steam Navigation Company of this preliminary victory will be appreciated when it is noted that the application of the British standard of limitation of liability – fifteen pounds per gross ton – would have provided for distribution among claimants a fund of $2,500,000, as against the trivial sum of $91,805.54, thus determined to be the limit of liability if the owner of the Titanic is in fact entitled to limit its responsibility – an issue not yet decided by the American Courts, and whose determination depends on proofs to be hereafter adduced. Thus far the Supreme Court has merely sustained the Company’s contention that the American statute and not the British will furnish the gauge of the amount for distribution, provided the Company is not precluded by the conditions of the American law from availing itself of the right of limitation. It is to be borne in mind that the right of a shipowner to limit liability under the Act of Congress is predicated on the fact that the negligent act committed was done without his privity or knowledge. In the case of a corporation, the privity or knowledge of the president, or other high officer, would of course be the privity or knowledge of the corporation itself, and would defeat its right to the exemption. Here the Company has appropriately alleged in its petition that “the collision aforesaid and the loss, damage, injury and destruction resulting therefrom were due to inevitable accident, and were not caused or contributed to by any negligence or fault on the part of the petitioner, or of those in charge of the steamship Titanic, and were occasioned and incurred without the privity or knowledge of the petitioner.” But if it be ultimately established that the Compnay itself was at fault, and that the accident in fact occurred with its privity and knowledge, then the Company’s petition must be dismissed, and in such event its liability will be unlimited. The press of New York is authority for the statement of one of counsel for the claimants, made since the decision at Washington, that the claimants will contend that there was not only negligence in the navigation of the Titanic, but that J. Bruce Ismay, the executive head of the Company, knew of the dangers, was privy to them and nevertheless permitted the vessel to continue her course and speed. It is hardly necessary to say that the Company, on the other hand, expressly “claims exemption from liability, as owner of the steamship Titanic, for the losses, damages, injuries, and destruction occasioned or incurred by the collision and sinking aforesaid, and for the claims for damages that have been made, or hereafter may be made, and it alleges that it has valid defenses thereto on the facts and under the provisions of the contracts for the carriage of the cargo and of the passengers and their baggage.”
(To be continued in Part V of George Whitelock’s Response to Mellor.)
